update: scroll down to the July 29, 2005 update to this post for news on

the final Legislation, signed July 29, which follows closely the House bill

(including the 1400 cap and hiring of 110 new public defenders).

“noyabutsSN” Here are excerpts from our prior discussion of issues relating to the assigned-counsel

fee battle in Massachusetts:

– from Please End the Boycott, an Open Letter to Bar Advocates (Aug. 12 2004), which discusses whether there has been an antitrust violation, the relationship of fees to actualoverhead, and what the true “market rate” might be for legal defense services:

[L]awyers should not be flouting the law and ethical duties in order to advance their own

financial interests.

I am a retired lawyer, who spent more than a decade as an antitrust lawyer at the

Federal Trade Comn and then another decade in a solo law practice focused on

serving as assigned counsel for children in NYS. After taking hundreds of assigned

cases (prior to a health-related retirement a few years ago), I know what it is like to

work for $25/hr. Massachusetts rates should be increased. But, I believe it is

have to overcome the private defense lawyer’s fear that a public defender office

will result in a loss of business.” That fear is clearly widespread in Massachusetts,

as it was throughout Upstate New York, for many years, where assigned counsel

fought hard to prevent the establishment of public defender offices. (The Mass.

assigned counsel are also complaining about the Report’s proposal to limit their

yearly hours to 1500 .)

There is already chatter on the Massachusetts assigned counsel ListServe about the

pilot projects being merely a means of “control.” The Massachusetts public, Courts

and Legislature — having been subjected to group boycotting by the bar advocates,

(who now understand the power of their concerted coercion and seem willing to hint at

using it again) — have every right to attempt to control the system. As I said on Saturday,

the Commission’s proposals appear to take into account the legitimate goals of all the

stakeholders.

. . .

MACAA says it was formed “to ensure that the highest quality of legal

representation is given to each and every person entitled to court appointed

counsel regardless of ability to pay.” It will be interesting to see whether

it chooses to focus on the goals of a guild: securing higher fees and assuring

work for its members (through opposition to the increased use of public defenders,

which would help the State comply with national standards for indigent defense) or

whether MACAA chooses good faith cooperation with state leaders to build an

indigent defense system that will work effectively and efficiently for their clients,

the courts and the public.

Supplement (July 26, 2005): National standards for indigent defense favor fulltime public defenders, whenever the population and caseload can support them. (Gideon’s Broken Promise, ABA, 2005.) In Massachusetts, 95% of indigent defense is handled by private assigned counsel. [See the 2005 Mass. Study Commission Report, at pp. 9 – 10.] Nevertheless, the bar advocates have rabidly opposed the Study Commission’s proposal to have test projects, which would hire more public defenders in the rural counties where the problem is most extreme, and to move toward a more appropriate ratio PDs to BAs — because they do not want to lose the income.

In Hampden County virtually all district court cases are handled by bar advocates. According to MACAA, the average panel member spends 85% of his or her time on bar advocacy work, in Bristol County it’s 77%. (per Bristol County Bar Advocates chart)

In its section on Massachusetts, the recent landmark American Bar Association report on the nation’s indigent defense system, “Gideon’s Broken Promise: Massachusetts” (Feb. 2005) specifically noted as a problem in the Massachusetts system that:

“Although national standards recommend the use of public defender programs wherever the population and caseload are sufficient to support such organizations, in many areas of Massachusetts, there is almost complete reliance on private assigned counsel, especially in misdemeanor and juvenile delinquency cases.”

Despite this statement, bar advocate spokespersons continuously say that the ABA Gideon Report praised the Massachusetss system. [See., e.g., quote from MACAA press secretary Nancy McLean, to the Lowell Sun Times.] The Gideon Report actually praised the “approach” used in Massachusetts of training the assigned counsel and monitoring them. The Report stated that the basis for their conclusion was the testimony of one witness — Bill Leahy, who is in charge of CPSC, the agency that oversees the bar advocate system, and has the task of training and monitoring the assigned counsel. [See fn. 401 of the full Gideon Report.]

The Massachusets Study Commission noted that when the system was originally set up:

“The idea was that representing indigent persons would allow private attorneys to supplement their income while simultaneously building a private practice.35 Moreover, as noted in Lavallee, the work voluntarily undertaken by private attorneys willing to accept CPCS cases is in the nature of public service because the source of compensation is the ‘limited public treasury’.36

“There has been, however, a gradual yet persistent movement away from that original intent, as an ever increasing number of private attorneys derive all or a significant part of their income from CPCS cases. As more and more private attorneys have come to rely almost exclusively on CPCS cases for their livelihood it is understandable how this group has come to feel underpaid for their services. Such feelings, however, overlook the fact that the hourly rates paid to CPCS private attorneys were never intended to be sufficient to sustain a private practice.”

As MyShingle‘s Carolyn Elefant recently explained, responding to bar advocate opposition to a cap of 1400 hours per year per panel member, Court Appointed Work Is Not Supposed To Be A Full Time Job! (July 23, 2005). I also agree with her Comment at the Andrew Winters Blawg, that — when using an assigned counsel panel as part of the indigent defense system — we can expect better attention to indigent cases from lawyers with self-sustaining law practices who take indigent work out of a sense of public service, and from less experienced lawyers who take the cases to gain valuable experience. When assigned counsel spend the vast majority of their time on indigent work, but are still attempting to find more lucrative private clients, they will surely give the private client special attention.

before the public interest or the smooth operation of the justice system.

On April 17th, MACAA’s board voted unanimously that rates should be “fully

implemented now” and that the pilot programs should be rejected. In paragraph

after paragraph, MACAA President Thomas Workman whines that “No professionals

in Massachusetts have ever had pay rates ‘phased in'”(and nor have assigned counsel

in any other state or nation!). Of course, Workman doesn’t mention the size of those

other pay hikes or the fiscal situation (imagine giving policemen or judges, or independent

snow plow operators a 67% increase in one year). As for the pilot projects that would use

state-employed public defenders MACAA’s Board states:

“Pilot programs are only needed to collect data, and this is notnecessary. Either the programs are being implemented for someulterior purpose, or they are not needed. In either case, the stateshould not waste money on unnecessary pilot programs.”

The Massachusetts bar advocates are continuing to put put their own financial interests above the law,

their ethical duties and the needs of their clientele:

First, they held a practice statewide boycott in 2003, shutting down courts and showing their destructive power;

then, they used a website to facilitate their joint action to raise their fees;

in July, they orchestrated statewide illegal group boycotts last summer, to force the State to pay them higher fees — virtually closing down a number of courts and forcing the release of some prisoners;

in August, they insisted that a coerced 25% pay hike passed by the Legislature was insufficient and refused to return to work;

next, they screamed and whined when desperate judges used emergency powers to appoint lawyers to indigent defendants, in order to stem the crisis created by the boycotting bar advocates;

predictably, they intensified their fee boycott and resisted emergency recruitment, including drafting sample Refusal Motions for lawyers to use to avoid service

today, The Massachusetts Association of Criminal Defense Lawyers, the Massachusetts Association of Court Appointed Attorneys, and three Springfield lawyers filed a lawsuit asking the full court to reverse the Interim Order by Justice Francis X. Spina that upheld the emergency appointment power

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